S.R. Simmons, for himself and as next friend of the minor children of himself and his deceased wife, F.E. Simmons, recovered in this action of trespass to try title from S.W. Wood and William Angel, as defendants, eighty acres of land forming the subject of the controversy.
Prior to July 20, 1882, S.R. Simmons and his wife, F.E. Simmons, were the admitted owners of the property. On that day they executed an instrument, in form an absolute deed, conveying to S.W. Wood the land in suit. This instrument was in fact a mortgage, being intended to secure the rents to become due on certain property leased for the period of twelve months, to begin on that day, by the plaintiff Simmons from the defendant Wood. *Page 333
April 26, 1884, S.W. Wood conveyed the land to Alonzo Tate. September 28, 1885, Tate conveyed to J.F. Blackman and William Angel. October 9, 1885, Blackman conveyed to Angel.
At the date of the several conveyances, the vendees knew, or were apprised of such facts as would put them, as prudent men, upon inquiry as to the true character of the instrument executed by Simmons to Wood, and would thus lead to a knowledge thereof.
Conclusions of Law. — The court did not err in admitting in evidence a copy of the lease contract entered into between Simmons and Wood. This contract was fully described in the plaintiffs' petition, and it may be said that, in a sense, it formed a ground of the plaintiffs' declaration. S.W. Wood was charged with its possession, and notice was given to him to produce it. His testimony indicated that the original was destroyed. The evidence proved the correctness of the copy made at the time of the execution of the original. Lumber Co. v. Tel. Co., 58 Tex. 394.
On the question of notice, the court instructed the jury, that "it is not necessary that a party should have actual knowledge; and if Angel had knowledge of such facts and circumstances as would have put a reasonably prudent man upon inquiry, and if such inquiry by being so made would have led to a knowledge of the fact that said instrument was a mortgage, if in fact it was a mortgage, such information would have the same effect as actual notice."
We think this instruction is a substantially accurate exposition of the law, and that it was amply justified by the evidence in this case; and we thus overrule appellant's sixth assignment of error.
The evidence was conflicting as to whether the defendant Angel held continuous possession, for three years prior to the institution of the suit, of the land in controversy, but we are of opinion that the court did not err in failing to charge on defendant's plea of the statute of limitation of three years. Having submitted the issue of absolute deed or mortgage, and that of innocent purchaser, the court was not called upon to charge with reference to the issue of limitation.
As appellee suggests, if the instrument executed by Simmons to Wood was an absolute deed, title thereby passed to the defendant. If, on the other hand, it was a mortgage, and appellant knew that fact, it would not support the plea of three years' limitation, because then there would be a "want of intrinsic fairness and honesty in the transaction." Snowden v. Rush, 69 Tex. 593.
The appellant's eighth assignment, that "the court erred in failing to give any instruction on defendant's claim of possession of the land in controversy," unaccompanied as it is by any proposition, or any specific statement, or reference to the record, indicating the point of complaint, is not entitled to consideration. *Page 334
The new trial, sought on the ground of newly discovered evidence, desired for the sole purpose of impeachment, was properly overruled. Sayles' Civ. Stats., art. 1368, note 10. It further appears, that very moderate diligence would have secured the evidence before the trial, which had, in fact, been preceded by others.
The evidence sustains the verdict of the jury, and the judgment is affirmed.
Affirmed.
STEPHENS, Associate Justice, did not sit in this case.